Thursday, May 13, 2010

Tough Justice?

In the lull between the nomination of and confirmation hearing for a new Supreme Court Justice, reporters need to find an angle. One such angle is how, if confirmed, Elena Kagan will become the fourth (more or less) native New Yorker on the Supreme Court, one from each borough, except for Staten Island: Scalia (Queens); Ginsburg (Brooklyn); Sotomayor (Bronx); and Kagan (Manhattan). In seeking explanations for this curiosity, one popular story line is that New Yorkers are "tough." I said just that in a story for Tuesday's edition of A.M. New York and so said Fordham Law Professor in a similar story in yesterday's N.Y. Times. Here I want to explore just what such toughness might mean, and cast some doubt on this storyline (including my own contribution to it).

Let's begin with the question: Are New Yorkers tough? Well, that depends in part on what we mean by toughness. I think the core idea is that they don't back down from a confrontation. This idea may be rooted in an inaccurate view of New York City as dangerous. Yet of the 32 American cities with a population of half a million or more, NYC is the fourth safest. To be sure, that's in terms of crime. New Yorkers face other dangers, such as the risk of terrorism--although of the New Yorkers at issue, only Sotomayor lived in NYC during and after 9/11.

Perhaps the toughness notion comes from the fact that New York is crowded: In order to preserve a sense of personal security and even identity, New Yorkers must push and shove, this line of reasoning would go. Maybe, but crowdedness can also produce a culture of extreme politeness, as Tokyo illustrates. New Yorkers are often said to be rude, and surely some are, but in my experience this is mostly a stereotype. When I lived in Manhattan (for 13 years), I was repeatedly told by tourists how surprised they were to find that the natives were very friendly. I'll admit that New Yorkers have a certain impatience about them--always in a hurry--but that's not exactly toughness.

In any event, let's concede that the broad stereotype has something to it. Other things being equal, Midwesterners and Southerners are more polite and patient than New Yorkers or than East Coasters in general. (More on Westerners in a moment.) But does that translate into the sort of "mental toughness" to which Flaherty and I alluded in the newspaper articles? Is someone raised in New York more likely to be able to dissect an advocate's weak argument or to stand up to pressure from a judicial colleague trying to garner her vote on an important case? And is the particular form of toughness we ascribe to New Yorkers especially desirable in a Supreme Court Justice?

In the last few weeks, I've noted that several news stories have commented on the charming habit of Justice Stevens of beginning his queries to lawyers appearing before the Court with the polite "May I ask you a question?". No one thinks for a moment that this decidedly non-New-Yorkish habit made Justice Stevens some sort of wimp. Far from it. He is the only military veteran on the current Court and, at 90, a regular tennis player and golfer. Or consider the late Harry Blackmun, a Minnesotan through and through, and thus the essence of politeness. Surely he needed to be tough to continue his work steadfastly despite the numerous death threats he received after authoring Roe v. Wade. Or, if we're considering origins as a basis for toughness, perhaps Sandra Day O'Connor's and William O. Douglas's youth in the Wild West should count to a greater degree than an exclusive high school in Manhattan. O'Connor and Douglas each thought the West a significant contributing factor to their respective outlooks.

Finally, the "toughness" trope is at odds with another commonly voiced view: that Kagan was effective as Harvard Law Dean because she was a good listener and a conciliator who reached out across ideological divides. According to this account, Kagan is much like Obama himself. Of course, Obama has been singularly unsuccessful in getting Republicans to go along with his agenda, so for this approach to work here, one has to assume that the dynamics on the Court are quite different from those in Congress. But whether Kagan proves able to build coalitions on the Court or not, my point is simply that "toughness" does not seem like the sort of quality likely to be most helpful to her in the effort.

4 comments:

I think a better explanation is that the Democratic leadership comes almost exclusively from New York, Chicago, and a few other big cities and is likely to nominate people more or less like themselves. This doesn't explain Scalia, who appears to have grown up in Queens. But that wasn't really the city, at least not when he grew up, his hostility to urban sophisticates was very much the Long Island norm.

New Yorkers may be more gruff than the rest of us - not because they are from a large, congested city, but merely because that's NYC's particular culture - but I doubt they are tougher than the rest of us, except in one critical respect: self-confidence. Being raised in the city that has the perspective of the famous New Yorker cartoon, or believes that everything that is not Broadway is Bridgeport, has its effect. One has to believe - really, deep down believe - that one can become a Supreme Court justice to ultimately become one. This does not mean that all New Yorkers have extraordinary self-esteem or that no one else does. But I suspect that a higher proportion of people raised in NYC are confident that they can climb to mountain top than do people raised in, say, Buffalo. That's an important edge.